United States District Court, E.D. Kentucky, Central Division, Lexington
MEMORANDUM OPINION & ORDER
GREGORY F. VAN TATENHOVE UNITED STATES DISTRICT JUDGE.
matter is before the Court upon Defendant Gerald C.
Lundergan's Motion for Reconsideration of Order on Motion
to Quash. [R. 231.] Mr. Lundergan seeks clarification on the
Court's earlier order [R. 206] denying the
Government's Motion in Limine and allowing Mr.
Lundergan's expert witness, former Chairman of the
Federal Election Commission Mr. Michel Toner, to testify at
trial. [R. 231.] Mr. Lundergan also asks the Court to
reconsider its order quashing the subpoena duces tecum for a
copy of the 2013-2014 unredacted RAD Manual. Id. For
the reasons set out in this Order, that Motion is
midst of trial and at an extremely late hour, Defendant Gerald
C. Lundergan filed a Motion seeking reconsideration of this
Court's earlier Order quashing his subpoenas to three FEC
Officials: Chair Ellen L. Weintraub, Vice Chairman Matthew S.
Peterson, and Director Debbie Chacona. [R. 231.]
Mr. Lundergan also sought the production of the an unredacted
version of the FEC's Reports and Analysis Division Review
and Referral Procedures (the RAD manual) for the 2013-2014
election cycle. At the time, Counsel for Mr. Lundergan argued
that these witnesses and the RAD manual were necessary in
order to avoid the “near-certain violation” of
Mr. Lundergan's due process rights if he was “not
permitted to call either of the expert witnesses who he has
noticed . . . or to obtain similar evidence and
testimony through the subpoenas that are presently at
issue.” [R. 199 at 2 (emphasis added).] The attempt to
subpoena these high-ranking FEC officials appeared to the
Court “Plan B” in the event the Court granted the
United States' Motion to Exclude Mr. Lundergan's
proffered expert witnesses. Thus, the Court granted the
United States' motion to quash the subpoenas in part
because the Court intended to allow defense expert Mr. Toner
to testify at trial. [R. 206.]
Mr. Lundergan moves this Court for clarification on the
permissible scope of Mr. Toner's testimony, as well as
reconsideration of its decision to quash the subpoena for the
2013- 2014 RAD Manual. Understandably, the timing of the
Motion means the Government has not filed a written response,
but it made the oral representation before the Court that it
stands by its arguments made in the Motion to Quash.
Specifically, the United States asserts that the RAD manual
is covered by the law enforcement privilege, and therefore
inadmissible at trial. [R. 243.]
is within the broad power of the district court to reconsider
an interlocutory order[.]” W. Tenn. Chapter of
Assoc. Builders & Contractors, Inc. v. City of
Memphis, 293 F.3d 345, 350 (6th Cir. 2002).
Reconsideration of an interlocutory order is justified under
three circumstances: (1) where there is “an intervening
change of the controlling law; (2) new evidence available; or
(3) a need to correct a clear error or prevent manifest
injustice.” Louisville/Jefferson Co. Metro
Gov't v. Hotels.com, L.P., 590 F.3d 381, 389 (6th
Cir. 2009). Although common, “motions for
reconsideration are ‘extraordinary in nature and,
because they run contrary to finality and repose, should be
discouraged.'” Younglove Constr., LLC v. PSD
Dev., LLC, 767 F.Supp.2d 820, 824 (N.D. Ohio 2011)
(citing, e.g., Braithwaite v. Dep't of Homland
Sec., 2010 U.S. Dist. LEXIS 32065, *1 (N.D. Ohio)).
According to Mr. Lundergan, the Court's Order quashing
its subpoenas was a clear error of law. [R. 231 at 3.]
counsel for Mr. Lundergan articulates a concern that the
testimony they may elicit from defense witness Michael Toner
is limited by what the United States elicited on direct
examination from Michael Hartsock. [R. 231 at 4.] This is not
the case. As stated in the Court's previous Order [R.
206], Mr. Toner may testify “regarding his direct,
personal knowledge of the mission, processes, and practices
of the FEC in connection with receiving and publicly
disclosing information concerning contributions to an
authorized campaign committee, ” to the extent that
such testimony “serves to clarify the complex
regulatory scheme that is the heart of this case.” The
precise contours of that testimony are indeterminable outside
the context of trial. However, it should be made clear that
the Court does not intend to limit the direct examination of
Mr. Toner to the scope of the direct testimony elicited from
Mr. Hartsock, as if this were cross-examination.
Court understands Mr. Lundergan's concern about the scope
of Mr. Toner's testimony. That said, the Court was quite
clear about what type of testimony is disallowed:
According to defense counsel, Mr. Toner's testimony could
also establish that the campaign had no obligation to list
Mr. Lundergan's contributions on its report, that the FEC
would not have expected it on the report, and that campaigns
in general would not report this type of contribution. But
this is precisely the type of broad, determinative testimony
that is typically beyond the scope of expert opinion. In
essence, this is nothing more than the expert sharing with
the jury his opinion that the defendant did nothing wrong.
This is an appropriate topic for argument, but not for
witness testimony by either party. Ultimately, the experts
may not speculate on the guilt or innocence of the
defendants, or whether they believe the defendants'
conduct fell within or without the bounds of permissible
conduct under the FECA.
[R. 206 at 5-6.] While the Court will not limit Mr.
Toner's testimony to the scope of Mr. Hartsock's
direct testimony, the foregoing still applies. Having
clarified those points, the Court is not persuaded to
reconsider its decision regarding the need for the FEC
subpoenas ad testificandum for additional witnesses.
Mr. Lundergan takes issue with the dearth of analysis
afforded to the RAD manual in the Court's previous Order.
[R. 231 at 6.] Although the Court declines the invitation to
reconsider its ...